Summary

In January 2012 the Guardian Council, an unelected body of
12 religious jurists charged with vetting all legislation to ensure its
compatibility with Iran’s constitution and shari’a, or Islamic law,
approved the final text of an amended penal code. While President Mahmoud
Ahmadinejad has not yet promulgated the new bill into law, Iranian officials
have described the amendments to the Islamic Penal Code— including more
than 737 articles and 204 notes that address various issues ranging from
extraterritoriality to the applicability and implementation of
punishments—as a new and improved set of laws, and repeatedly cited them
as an example of the government’s serious attempt to comply with its
international human rights obligations.

However, many problematic provisions of the old penal code
remain unchanged, and some of the amendments actually represent a weakening of
the rights of criminal defendants and convicts. In many cases the new
provisions ignore serious concerns about the severity of the penal provisions
and their legality under international law. Some provisions touted as marked
improvements by Iranian officials would actually allow judges wide discretion
to issue punishments that clearly violate the rights of the accused.

In a limited number of areas it is true that Iranian
lawmakers have made improvements to the penal code. For example, a new
provision abolishes the death penalty for child offenders (defined as anyone
accused of committing a crime under 18 years of age) for crimes that do not
carry specific or required punishments in shari’a law. The new code also expands
correctional and rehabilitation measures in lieuof imprisonment and
other harsh penalties for children, and provides more sentencing guidelines
than the old code.

However, under the new penal provisions “discretionarycrimes,” which include punishments for the vast majority of
Iran’s national security laws under which political dissidents are tried
and convicted in revolutionary courts, remain, for the most part, unchanged.

Furthermore, among its many other shortcomings, the new code
includes the retention of the death penalty, including for child offenders in
certain circumstances. The new penal code also fails to codify laws for which
there are serious punishments, including the death penalty; uses broad or
vaguely worded national security laws criminalizing the exercise of fundamental
rights; and retains punishments that amount to torture or cruel and degrading
treatment, such as stoning, flogging, and amputation. The amendments also
retain previously discriminatory provisions against women and religious
minorities.

Contrary to repeated assertions by Iranian authorities that
the penal code amendments prohibit the execution of children less than 18 years
of age, the new law retains the death penalty for children in certain
circumstances. Under the new code, children who commit “discretionary
crimes”are no longer subject to execution, and courts are instead
required to sentence child offenders found guilty of suchcrimes to
correctional and rehabilitation measures. This means there is indeed a strict
prohibition on the execution of child offenders convicted, for example, of drug
trafficking and possession charges, which can be subject to the death penalty under
Iran’s draconian anti-narcotics law.

However, the new code also explicitly pegs the age of
criminal responsibility to the age of maturity or puberty (bolugh) under
shari’a law, which in Iranian jurisprudence, is nine years for girls
(eight years and nine months per the lunar calendar) and 15 years for boys (14
years and seven months per the lunar calendar). A judge may, therefore, still
sentence to death a girl as young as nine or a boy as young as 15 convicted of
a “crime against God” or a crime subject to retributive justice,
such as sodomy or murder, if the judge determines that the child understood the
nature and consequences of the crime he or she committed.

As with the old penal code, the new amendments provide the
death penalty for activities that should either not constitute crimes at all or
are not considered among “the most serious” crimes (typically
resulting in death) under international law. The new provisions continue to criminalize
certain types of consensual heterosexual and same-sex sexual relations outside
of marriage, such as adultery and sodomy, under penalty of death. Other crimes
that carry the death penalty under the new provisions include possession or
selling of illicit drugs and insulting the Prophet Mohammad, his daughter
Fatima, or any of the twelve Shi’a Imams.

Another serious flaw in the new penal code is that it allows
judges to rely on non-codified law to convict and sentence individuals to
crimes and punishments. For example, unlike the old code the new amendments explicitly
allow judges to rely on religious sources, including shari’a and fatwas
(religious edicts) issued by high-ranking Shia clerics, to convict an
individual of apostasy or to sentence a defendant convicted of adultery to
stoning. This is true even though there is no crime of apostasy under the penal
code and stoning as a form of punishment for adultery has been removed from the
new provisions. Though the numbers of individuals executed by stoning or for
apostasy are relatively low in recent years, the new provisions fail to
prohibit such practices.

The new provisions also allow judges to rely upon their
“knowledge” not only in resolving issues related to applicable
laws, but also in determining issues of fact and evidence. Under the old
provisions, judges often abused this provision and relied upon evidence that
should have been made inadmissible to prove guilt or innocence, including
confessions extracted through the use of physical torture and extreme
psychological pressure. Moreover, under the old code, judges sometimes relied
on this provision as a way to introduce non-codified shari’a evidentiary
standards to determine the innocence or guilt of the accused. It is not clear
whether new provisions defining “knowledge of the judge” in the new
code prohibit the use of non-codified law to determine culpability.

One particularly troubling amendment to the new code
concerns article 287, which defines the crime of efsad-e fel arz
(“sowing corruption on earth”), punishable by death. Legislators
have greatly expanded the definition of this crime, which was previously
largely limited to prosecuting individuals alleged to be involved in armed
resistance or terrorism against the state, to include an even broader set of
ill-defined activities, such as “publish[ing] lies,”
“operat[ing] or manag[ing] centers of corruption or prostitution,”
or “damag[ing] the economy of the country” if these actions are
deemed to “seriously disturb the public order and security of the
nation.” Furthermore, because this crime is considered a “crime
against God” for which shari’a law assigns fixed and specific
punishments, judges (and even the Supreme Leader of the Islamic Republic) are, in
contravention of international law, generally precluded from granting convicts
pardons or commuting their sentences.

Under the current penal code authorities have executed at
least 36 people since January 2010 on the charge of “enmity against
God” or “sowing corruption on earth” for their alleged ties
to armed or terrorist groups. At least 28 Kurdish prisoners are also known to
be awaiting execution on various national security charges, including
“enmity against God.” Human Rights Watch believes that in a number
of these cases, Iran’s judicial authorities convicted, sentenced, and
executed individuals simply because they were political dissidents, and not
because they had committed terrorist acts.

The new penal provisions also fail to amend any of the
overly broad or vaguely defined national security laws that severely punish
individuals for exercising their right to freedom of expression, association,
or assembly. Prosecutors and revolutionary courts systematically use these laws
to target, harass, imprison, and silence critics and political dissidents.

Two other serious flaws in the new penal code provisions
include the retention of punitive measures that amount to torture and cruel,
degrading, or inhuman treatment of individuals convicted of crimes, including
flogging, and the inclusion of discriminatory provisions against women and
religious minorities related to the implementation of punishments, retribution
and compensation, and use of evidence in court. Examples of discriminatory
articles include differential treatment accorded to boys and girls in relation
to the “age of maturity” and its consequences regarding criminal
responsibility, and harsher punishments (including death) for non-Muslim
defendants convicted of consensual same-sex relations.

An assessment of the new Iranian penal code provisions
clearly suggests that the new penal code provisions approved by Iranian
lawmakers fail to address serious human rights concerns regarding the
administration of justice in Iran. In light of these failures, Human Rights
Watch calls on the Iranian government to immediately suspend key provisions of
the country’s penal code that violate the rights of criminal defendants, and
to introduce new legislation in line with its international legal obligations.

Recommendations

To the Government of Iran

Remove any and all references to the death penalty in the penal
code and abolish its use.

Abolish the death penalty completely and immediately for child
offenders, including those charged with categories of crimes for which death
sentences can still be issued by courts (i.e. “crimes against God”
or “retribution crimes”).

Abolish the death penalty for all crimes not considered
“serious” (typically resulting in death) under international law,
including drug possession and trafficking.

Abolish all provisions that criminalize conduct that involves the
exercise of basic rights including the right to privacy, such as consensual adult
sex, including outside of marriage.

Amend the penal code to include a gender-neutral criminal
provision on rape, including criminalization of marital rape.

Ensure that all provisions criminalizing conduct or punishing
conduct considered criminal, including the death penalty, are codified (i.e.
clearly identified as crimes or punishments with specific reference to the
elements that constitute the crime, such that an ordinary citizen could
determine if their acts would constitute a criminal offense) in the penal code
or other relevant laws.

Remove or amend articles in the penal code allowing convictions,
including those relating to same-sex conduct, based solely on the knowledge of
the shari’a judge as “derived through customary methods,”
which enables judges to rely on tenuous circumstantial evidence to determine
whether a crime has occurred and instead require reliance on inculpatory or
exculpatory evidence that can be tested and challenged by the defendant and his
or her legal representatives.

Abolish or amend vague or overly broad crimes such as
“enmity against God” or “sowing corruption”.

Narrowly define and identify the elements of conduct under these
offenses that constitute a crime, including defining a “center of
corruption,” so as to ensure that conduct that is protected under
international law, such as the exercise of human rights like freedom of
expression or association, is not criminalized under these provisions.

Remove the
death penalty for these offenses, beginning with crimes not considered
“serious” under international law, including “publishing
lies,” “damaging the economy of the country,” and
“operat[ing] or managing centers of corruption or prostitution”.

Amend or abolish the vague
security laws under the penal code (which have been retained wholesale in the
new penal code amendments), entitled “Offenses against the National and
International Security of the Country” (the “Security Laws”)
and other legislation that permits the government to arbitrarily suppress and
punish individuals for peaceful political expression, in breach of its
international legal obligations, on grounds that “national
security” is being endangered, including the following provisions:

Article 498 of the Security Laws, which criminalizes the
establishment of any group that aims to “disrupt national
security”;

Article 500, which sets a sentence of three months to one year of
imprisonment for anyone found guilty of “propaganda against the order of
the Islamic Republic of Iran or propaganda for the benefit of groups or
institutions against the order”;

Article 610, which designates “gathering or colluding
against the domestic or international security of the nation or commissioning
such acts” as a crime punishable from two to five years of imprisonment;

Article 618, which criminalizes “disrupting the order and
comfort and calm of the general public or preventing people from work”
and allows for a sentence of three months to one year, and up to 74 lashes;

Article 513 of the penal code, which criminalizes any “insults”
to any of the “Islamic sanctities” or holy figures in Islam and
carries a punishment of one to five years, and in some instances may carry a
death penalty;

Article 514,
which criminalizes any “insults” directed at the late Supreme
Leader of the Islamic Republic of Iran, Ayatollah Khomeini, or the current
Leader, Ayatollah Khamanei, and authorizes a sentence of up to six months to
two years in prison.

Define both “national security” and the breaches
against it in narrow terms that do not unduly infringe on internationally
guaranteed rights of free expression, association, and assembly.

Remove all provisions that criminalize “insults”
against religious figures and government leaders.

Remove all provisions that allow for punishments that amount to
torture or cruel and degrading treatment, including stoning, flogging,
blinding, and amputation.

Amend the penal code by adopting a definition of torture
consistent with article 1 of the Convention against Torture to ensure that all
acts of torture and cruel, inhuman, or degrading treatment are criminal
offenses and that penalties reflect the grave nature of such offenses.

Remove all discriminatory provisions against women and religious
minorities (i.e. non-Muslims) related to the implementation of punishments,
retribution and compensation, and the use of evidence in court, including:

Differential treatment accorded to men (or boys) and
women (or girls) in relation to the age of criminal responsibility;

Differential punishment accorded to fathers and grandfathers
who murder their children or grandchildren;

Differential punishment accorded to men who murder their
spouses;

Differential compensation accorded to men and women who
suffer injuries as a result of criminal or tortious conduct;

Differential evidentiary standards valuing the testimony
of a woman as equal to half of that of a man.

I. Background

The Islamic Penal Code, which came into effect in 1991, is
the codification of several different pieces of legislation that addresses
punishment and compensation for criminal (and tortious) conduct. Along with the
Code of Criminal Procedure and the Law Establishing General and Revolutionary
Courts, the code serves as the primary body of procedural and substantive law
related to the administration of justice on all criminal matters.

The code comprises 729 articles and is divided into five
“books” or main sections that deal with general penal provisions
and four specific categories of punishments referenced in shari’a law.
These categories include: a) hadd or hodud (pl.), defined as “crimes
against God,” the punishments for which, including degree, type and
implementation, are specified in shari’a law ; b) qesas,
retributive justice reserved for crimes that cause death or injury, such as
murder ( “retribution crimes”); c) diyeh, monetary fine or
compensation to victims in the form of “bloody money” for
unintentional acts that cause death or injury or for intentional crimes not
covered by qesas (“compensation crimes”); and d)
ta’zir, or punishments for criminal acts that do not have specific or
fixed sentences or penalties under sharia law but are considered to be in
conflict with religious or state interests (“discretionary crimes”).[1]

The 1979 Islamic Revolution ushered in a new legal era in
Iran that led to a revamping of criminal legislation and the court system.
Under the leadership of Ayatollah Ruhollah Khomeini, the founder and first
Supreme Leader of the Islamic Republic, lawmakers drafted a constitution that
declared the Jafari or Twelver Shia school of jurisprudence the official state
religion and shari’a law as a source of applicable law. The revolutionary
council abolished most of the country’s existing laws, including the
penal code, as un-Islamic. In the absence of a codified set of criminal laws,
including a new penal code consistent with shari’a law, revolutionary
courts meted out justice based on their interpretation of shari’a law.
The courts sentenced hundreds of political prisoners and alleged criminals to death
for crimes such as moharebeh (“enmity against God”)[2]
and efsad-e fel arz (“sowing corruption”).

In 1982 lawmakers passed the Law of Hodud and Qesas,
the country’s first major set of penal code provisions since the revolution.
A year later they ratified the Law of Ta’zirat, or “discretionary
punishments”, for a trial period. By 1991 lawmakers unified these
separate pieces of legislation into the Islamic Penal Code and approved it for
a five-year trial period (which was later renewed for five and ten-year
periods). In 1996 lawmakers amended some articles of the new code and finalized
ratification of Book 5 under the title “Discretionary and Deterrent
Punishments,” or Ta’zirat. Three years later they approved a
new Criminal Code of Procedure.

In 2007 the Judiciary submitted draft penal code amendments
to finalize ratification of the penal code whose trial period was set to expire
in March 2012. In 2008, the legal committee of the parliament approved the
general terms of the new legislation and in December 2009 the full parliament
approved the text and submitted it to the Guardian Council, an unelected body
of 12 religious jurists charged with vetting all legislation to ensure its
compatibility with Iran’s constitution and shari’a. After two
exchanges between parliament and the Guardian Council, the latter announced the
ratification and adoption of the final text of the bill on January 28, 2012.

For the new code to take full effect, President Mahmoud
Ahmadinejad must sign it into law and it must be published in the
country’s official journals.[3] However,
President Ahmadinejad has not yet signed the bill into law. Once he signs it,
it will undergo a three-year trial period. In April 2012 Ayatollah Sadegh
Larijani, the head of Iran’s Judiciary, announced that in the meantime he
had instructed courts to apply the previous code but expressed hope that
Ahmadinejad would sign the new provisions into law as soon as possible.

In the lead-up to the ratification and adoption of the new code,
Iranian authorities constantly referred to its provisions as proof of
Iran’s serious efforts to comply with international human rights
standards. For example, in November 2011, during a two-day review of
Iran’s rights record before the United Nations Human Rights Committee
(Committee) in Geneva, representatives from the Iranian delegation repeatedly
referred to the reformed code as a remedy to the Committee’s numerous
concerns regarding troubling provisions in the old code.

In February 2012 the spokesperson for the Judicial and Legal
Committee of the parliament, Amin Hossein Rahimi, told reporters that under the
new amendments, the age of criminal responsibility had increased to 18 years
and authorities could no longer execute individuals who committed “retribution
crimes” prior to age 18. During the next few months, Rahimi and Iranian
officials and parliamentarians highlighted the advances of the amended code,
citing the elimination of stoning as punishment for the crime of adultery, the
absence of any provisions regarding the crime of apostasy (which carries the
death penalty under shari’a law),[4] and the
establishment of comprehensive corrective and rehabilitative measures for both
child offenders (anyone charged and convicted of a crime under the age of 18)
and individuals convicted of lighter “discretionary crimes” as
examples of substantive and important reforms.[5]

Officials have also pointed to new provisions that establish
clearer sentencing categories for discretionary punishments ranging from
25-plus years’ imprisonment (the heaviest category of “discretionary
crimes” under the new code) to imprisonment of up to three months (the
lightest category). The various categories also contain other forms of
punishment, including monetary fines, confiscation of property,[6]
and flogging.[7]

Despite these promised advances, the reformed penal code
reaffirms, in many instances, Iran’s disregard for the rights of criminal
defendants and convicts, while in other important areas it presents a troubling
deterioration of the limited rights that existed under the old code. Mr.
Rahimi’s assertion that the new code’s age of criminal
responsibility complies with international standards is incorrect, and his
claim that it now prohibits “retribution crime” punishment (i.e.
execution) for children convicted with murder is also inaccurate. The same
applies to other characterizations made by Iranian media outlets regarding the amended
criminal code, including blanket declarations that the new provisions prohibit
punishments such as stoning.

The most serious problems with the new code include:

1)retention
of the death penalty for child offenders;

2)retention
of the death penalty for crimes considered not to be “serious”
under international law;

3)failure
to codify laws related to serious punishments including death;

4)the
use of broad or vaguely worded national security laws criminalizing the
exercise of fundamental rights;

5)the
continued use of punishments that amount to torture or cruel and degrading
treatment, such as stoning, flogging, and amputation; and

6)the
retention of previously discriminatory provisions against women and religious
minorities related to the implementation of punishments, retribution and
compensation, and use of evidence in court.

While the amended penal code makes a few important advances,
the provisions highlighted above continue to deprive Iranians of their basic
rights under international law to fundamental freedoms, freedom from cruel and
arbitrary punishment, and freedom from discrimination. The Iranian government
should immediately suspend these provisions, and initiate a complete overhaul
of the penal code to ensure it complies with its international legal
obligations.

II. Iran’s International
Obligations

The Right to Life

Article 6 of the International Covenant on Civil and
Political Rights (ICCPR) states that “In countries which have not
abolished the death penalty, a sentence of death may be imposed only for the
most serious crimes in accordance with the law in force at the time of the
commission of the crime.”[8]
The Human Rights Committee, which authoritatively interprets the covenant, has
said that the death penalty should be a “quite exceptional
measure.”[9]
The ICCPR also provides that “Anyone sentenced to death shall have the
right to seek pardon or commutation of the sentence.”[10]

The juvenile death penalty is prohibited under international
law, and the prohibition is absolute. Both the ICCPR and the Convention on the
Rights of the Child (CRC) specifically prohibit capital punishment for persons
under 18 at the time of the offense.[11]
Iran ratified the ICCPR in 1975 and the CRC in 1994. Between 2007 and 2009, the
UN General Assembly twice specifically called upon Iran to end the death
penalty for children.[12]

In addition, the UN Human Rights Committee has repeatedly
found that drug-related offenses do not meet the criterion of “most
serious crimes.”[13] In 2007
a summary by the UN Special Rapporteur on extrajudicial or arbitrary executions
stated:

The conclusion to be drawn from a thorough and systematic
review of the jurisprudence of all of the principal United Nations bodies
… is that the death penalty can only be imposed in such a way that it
complies with the stricture that it must be limited to the most serious crimes,
in cases where it can be shown that there was an intention to kill, which
resulted in the loss of life.[14]

In 2009, the Special Rapporteur reminded states that, under
international law, death sentences for drug-related crimes should be abolished
and those already passed should be commuted to prison terms.[15]
Other authorities, including the UN High Commissioner for Human Rights and the
UN Special Rapporteur on torture and other cruel, inhuman or degrading
treatment or punishment, have also maintained that the imposition of the death
penalty for drugs crimes violates international law.[16]
The latter has noted that, in his view, “drug offenses do not meet the
threshold of most serious crimes. Therefore, the imposition of the death
penalty on drug offenders amounts to a violation of the right to life,
discriminatory treatment and possibly … their right to human
dignity.”

The UN Secretary General and the UN Special Rapporteur on
the situation of human rights in Iran both expressed concern in 2011 about the
high level of executions for drug-related offences. In October 2011, the UN
Human Rights Committee recommended that the Iranian authorities consider
abolishing the death penalty or at least revise the penal code to restrict the
imposition of the death penalty to only the “most serious crimes.”[17]

The Right to Liberty and Security

Article 9 of the
International Covenant on Civil and Political Rights (ICCPR) affirms that,
“Everyone has the right to liberty and security of person.” Article
9 also prohibits “arbitrary arrests” and requires that the
deprivation of liberty only take place “on such grounds and in
accordance with such procedure as are established by law.”

Protection against
Torture and Cruel, Inhuman, and Degrading Treatment

The ICCPR prohibits any form of torture and cruel, inhuman, and
degrading treatment in articles 7 and 10. Although Iran is not a party to the
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment (Convention Against Torture), the prohibition of torture is consider
an absolute rule (jus cogens) in customary international law. Torture is
also prohibited under Iranian law.[18]

The ICCPR and the Convention Against Torture detail what
states must do to enforce the prohibition, including the duty to investigate,
prosecute, and provide effective remedies when violations occur.[19]
The UN Human Rights Committee has also made clear that the duty to protect
people against torture or inhuman treatment not only extends to acts committed
by government officials, such as police, but also those inflicted by private
individuals.[20]

The Human Rights Committee has noted that the prohibition
against torture or cruel, inhuman, and degrading treatment or punishment
“relates not only to acts that cause physical pain, but also to acts that
cause mental suffering to the victim.”[21] The
Committee has noted that the prohibition extends to “corporal punishment,
including excessive chastisement ordered as punishment for a crime or as an
educative or disciplinary measure.”[22] The
Special Rapporteur on Torture has specifically addressed the impermissibility of
corporal punishment even when laws authorizing it are derived from religion,
noting that “those States applying religious law are bound to do so in
such a way as to avoid the application of … corporal
punishment in practice.”[23]

The Right to Privacy

Article 17 of the ICCPR
states, “no one shall be subjected to arbitrarily or unlawful
interference with his privacy” and that everyone has “the right to
the protection of the law against such interference.”[24] This right includes “that particular area
of individual existence and autonomy that does not touch upon the sphere of
liberty and privacy of others.”[25]

One protected aspect of the right to privacy and autonomy,
confirmed by the Human Rights Committee, is adult consensual sexual activity in
private. As the Committee has set out this right, states should protect this
right and other aspects of the individual right to autonomy: the right to make
decisions freely in accordance with one’s values, beliefs, personal
circumstances, and needs. States should refrain from imposing illegitimate
restrictions and coercion that restricts this right, even where the purpose of
such restrictions is to prevent people from adopting a lifestyle that the majority
believes is distasteful or harmful to the person who pursues it. Any
limitations on the right to autonomy must be directed to a legitimate aim and
applied in a nondiscriminatory manner, and the extent and impact of the
limitation must be strictly proportionate to meeting that aim.[26]

Right to a “Fair
Hearing”

Article 14 of the ICCPR guarantees that

All persons shall be equal before the courts and tribunals.
In the determination of any criminal charge against him, or of his rights and
obligations in a suit at law, everyone shall be entitled to a fair and public
hearing by a competent, independent and impartial tribunal established by law.[27]

Article 14 also provides the accused shall “not be
compelled to testify against himself or to confess guilt,” and shall
“have the right to his conviction and sentence being reviewed by a higher
tribunal according to law.”[28]

Codification of
Criminal Laws

According to Article 15(1) of the ICCPR

No one shall be held guilty of any criminal offence on
account of any act or omission which did not constitute a criminal offence,
under national or international law, at the time when it was committed. Nor
shall a heavier penalty be imposed than the one that was applicable at the time
when the criminal offence was committed.

Non-Discrimination and
Fundamental Rights

Article 2 of the ICCPR requires a state party to
“ensure to all individuals within its territory and subject to its
jurisdiction the rights recognized in the present Covenant, without distinction
of any kind.” It also provides that the state must “ensure that any
person whose rights or freedoms as herein recognized are violated shall have an
effective remedy,” and that “competent authorities shall enforce
such remedies when granted.”[29]
The right to a remedy exists regardless of whether the perpetrator is acting in
an official capacity or a private one. Article 26 guarantees that “all
persons are equal before the law and are entitled without any discrimination to
the equal protection of the law.” Unequal protection against violence and
unequal access to justice, unless strictly justified, are therefore prohibited
under international law.

The ICCPR affirms the right to privacy (article 17),
security (article 9), freedom of expression (article 19), and freedom of
assembly (article 21). These rights entail the freedom to lead an intimate life
peacefully; the freedom to express oneself, including one’s gender
identity, through clothes or comportment; and the freedom to move and meet in
public without fear of harassment or assault. The state must protect people in
exercising these rights. Persecuting or harassing people for exercising these
freedoms must be prevented where possible and punished where it occurs.

Iranian laws regulating any of these rights and any other
government limitation on these rights can only impose such limitations as are
consistent with international legal standards—that is, they must be
strictly necessary to achieve a legitimate purpose. As the UN Human Rights
Committee has advised, “Restrictive measures must conform to the
principle of proportionality; they must be appropriate to achieve their
protective function; they must be the least intrusive instrument amongst those
which might achieve the desired result; and they must be proportionate to the
interest to be protected.”[30]
Any restrictions must also strictly observe the principle of
non-discrimination.

Freedom of Expression,
Assembly, and Association

The rights to freedom of expression, assembly, and
association provided under international human rights law may be limited within
narrowly defined boundaries. However, the overly broad exceptions to free
expression contained in the Iranian constitution, security laws, and the Iranian
penal code more generally allow the government to suppress these rights beyond
the limits set by international law.

A party to the ICCPR since 1975, Iran is obligated to abide
by this framework. Article 21 of the ICCPR guarantees the right to peaceful
assembly.[31] The
article specifies that “no restrictions may be placed on the exercise of
this right other than those imposed in conformity with the law and which are
necessary in a democratic society in the interests of national security or
public safety, public order (ordre public), the protection of public
health or morals or the protection of the rights and freedoms of others.”

The right to freedom of association is also well established
in international law. The right to freedom of association may be restricted,
but only on certain prescribed grounds and only when particular circumstances
apply.[32]
According to Prof. Manfred Nowak in his authoritative analysis of the ICCPR,
the restrictions specified in Article 22(2) should be interpreted narrowly. For
example, terms such as “national security” and “public
safety” refer to situations involving an immediate and violent threat to
the nation. “Necessary” restrictions must be proportionate: that
is, carefully balanced against the specific reason for the restriction being
put in place.[33]

The UN Human Rights Committee, the international expert body
that monitors state compliance with the ICCPR, has repeatedly highlighted the
importance of such proportionality. In international law,
“necessary” restrictions on freedom of assembly and association
must be proportionate: that is, carefully balanced against the specific reason
for the restriction being put in place.[34]

III. Death Penalty for
Child Offenders

Government officials have touted Iran’s newly amended
penal code for its “abolition” of the death penalty for child
offenders, defined under international law as anyone convicted for a crime he
or she committed while under 18 years of age. An assessment of the new
amendments, however, reveals that while lawmakers have abolished the death
penalty for “discretionary crimes” such as drug possession or
trafficking, judges may still exercise their discretion in sentencing child
offenders to death for “crimes against God” or ”retribution crimes.”

Iran remains the world leader in executing individuals who
committed an offense while under the age of 18. During the past three years,
Iran is believed to have executed more juvenile offenders than any other
country in the world. Authorities executed at least three children in 2011, one
in 2010, and five in 2009. In 2011 there were at least 143 child offenders on
death row in Iranian prisons for alleged crimes including rape and murder.[35]
The figures for 2009 are five children; in 2008 seven, and in 2007 at least
eight.[36]Despite all evidence to the contrary, President Mahmoud Ahmadinejad claimed
in 2008 that his country does not execute people for crimes committed before
they were 18-years-old.[37]

The juvenile death penalty is prohibited in international
law, and the prohibition is absolute. Both the Convention on the Rights of the
Child (CRC) and the International Covenant on Civil and Political Rights (ICCPR)
specifically prohibit capital punishment for persons under 18 at the time of
the offense. Iran ratified the ICCPR in 1975 and the CRC in 1994. Between 2007
and 2009, the UN General Assembly twice specifically called upon Iran to end
the juvenile death penalty, and member states again raised their concerns
regarding this issue during Iran’s Universal Periodic Review in February
2010.[38]

The majority of juvenile executions in Iran are for
intentional murder.[39]
Intentional murder, which under Iranian law includes cases where the murderer
intentionally makes an action that is inherently lethal, even if he does not
intend to kill the victim, is considered to be a crime punishable by
retribution in kind (qesas-e nafs). While the judiciary is responsible
for carrying out the trial and implementing the sentence in these cases,
Iranian law treats them as private disputes between two civil parties, where
the state facilitates the resolution of the dispute. The victim’s
survivors retain the right to claim retribution in kind (that is, demand the
defendant’s death), to pardon the killer, or to accept compensation in
exchange for giving up the right to claim retribution.

Under article 49 of the old code, lawmakers absolved
children of criminal responsibility but defined the term ‘child’ as
one who has not yet reached the age of maturity according to shari’a law.[40]
Yet the old code did not define what is meant by the “age of
maturity” and there is no unified interpretation of maturity, or bolugh,
in shari’a law.[41] In
determining maturity, judges referred to text in the 1991 Civil Code, which
defined the “age of maturity” as nine lunar years (eight years and
nine months per the solar calendar) for girls and 15 lunar years (14 years and
seven months) for boys.[42]

Under this legal regime
Iran’s judiciary has sentenced hundreds of children to death, and prison
authorities have carried out dozens of hangings of juvenile offenders. Yet
authorities regularly assert that there has always been a prohibition on the
execution of children under Iranian law. They justify their position by arguing
that children are defined differently under shari’a law, that authorities
do not execute anyone until they reach 18 lunar years or that in the case of “retribution
crimes,” such as murder, it is not the state that carries out executions
but family members of the victim, who decide whether the defendant should be
put to death, pardoned, or pay compensation in the form of blood money.[43]

In response to mounting international criticism of its
practice of execution child offenders, Iranian officials initiated piecemeal
measures to address the issue. In 2003 and 2008 the former head of Iran’s
judiciary, Ayatollah Mahmoud Hashemi Shahroudi, issued circulars instructing
judges not to issue death sentences for any person convicted of a crime under
18 years of age. Local judges refused to abide by the circular, arguing that
they were in conflict with the provisions of the old penal code.[44]
In July 2006 the Iranian parliament gave an initial reading to a draft Juvenile
Crimes Investigation Act that officials have said would end executions for
juvenile offenders, but which actually allowed judges’ discretion to
sentence juvenile offenders to death.[45]
Lawmakers never adopted the law but at least some of its provisions ultimately
found their way into the newly amended penal code.

Age of Criminal
Responsibility Still Equals Age of Maturity

Articles 87-94 of the amended code generally address
punishments and correctional measures applied to “children and
adolescents.” Unlike the old code, the new code defines the “age of
criminal responsibility” for the first time, but pegs it to the age of
maturity under shari’a law.[46] Accordingly,
judges may not hold girls under nine lunar years and boys under 15 lunar years
criminally responsible for their actions or omissions.[47]
This was already the practice under the old code, but the amended code includes
a specific provision codifying the age requirement.

Death Penalty Abolished
for “Discretionary Crimes”

A particularly noteworthy
area of improvement in the new code is for children who commit “discretionary
crimes.” Under the new amendments, they are no longer subject to
execution. Judges are instead required to sentence child offenders found guilty
of “discretionary crimes” to a variety of correctional and
rehabilitation measures depending on the nature of their crime and age range.[48] This is a somewhat positive step given that the vast
majority of all the executions carried out by authorities over the past few
years have involved drug possession and trafficking crimes which are considered
“discretionary crimes.”

Death Penalty Retained
for Other Crimes

No such prohibition exists, however, for children convicted
of “crimes against God” (which include death sentences for crimes
such as consensual sex outside of marriage and apostasy) and “retribution
crimes” such as intentional murder. (As previously mentioned these crimes
account for the majority of death sentences passed by the judiciary against
child offenders.) Under article 90 of the amended code, a judge may sentence a
boy who is 15 (lunar) years and older or a girl who is nine (lunar) years and
older to death for these two categories of crimes if he determines that the
child understood the nature and consequences of the crime he or she committed.[49]
The article allows the court to rely on “the opinion of a forensic doctor
or other means it deems appropriate” to establish whether a defendant
understood the consequences of his or her actions.[50]

For children convicted of these categories of crimes who are
under the age of maturity (and therefore criminal responsibility under Iranian
law), the amended penal code requires a series of correctional and
rehabilitation measures.[51] Nonetheless,
it does not meet the absolute prohibition on child executions required by
international law.

Under international law, anyone under the age of 18 is
considered a child and there is a strict prohibition on execution of child
offenders. The new code provisions therefore clearly violate international law
because they fail to abolish the death penalty for children, specifically boys
who are 15 (lunar) years and girls who are nine (lunar) years and older.

IV. Death Penalty
for Protected Conduct or Non-Serious Crimes

The amendments to the penal code retain the death penalty
for activities that should either not constitute crimes at all, or for which
the death penalty is strictly prohibited under international law, given they
are not considered among “the most serious” crimes. Crimes for
which the death penalty is mandatory under the new node generally fall under
the category of “crimes against God.” Contrary to international
law, under both the old and new codes individuals convicted and sentenced to
certain punishment for “crimes against God” (including the death
penalty) cannot receive pardons or commutations of their sentence. These crimes
include but are not limited to adultery, sodomy, and same-sex relations, and
insulting the Prophet Mohammad. Other charges that qualify individuals for the
death penalty are related to harsh anti-narcotics laws that criminalize the
possession and sale of even modest amounts of drugs.

Adultery

Articles 222-231 of the new code address the crime of zena
(“adultery” or “fornication,” depending on the
marital status of the individuals involved), generally defined as consensual or
forced penetrative sex between a man and a woman outside of marriage. The new code
removes, but does not specifically prohibit the imposition of the punishment of
stoning, which is explicitly reserved for adulterers in the old code. However, in
this area the amendments largely leave intact the provisions of the old code
which make the death penalty mandatory for all individuals who willingly engage
in sex with someone other than their married spouse (i.e. adultery), those who
engage in incest, men who have sex with their stepmothers, and non-Muslim men
who have sex with a Muslim woman regardless of his marital status.[52]
Judges can sentence offenders who have not reached the “age of
maturity” only to correctional and rehabilitation measures.[53]

The new code still considers rape to be forced adultery or
fornication—thereby excluding marital rape—and makes the death
penalty mandatory for the offender.[54] Victims
of rape are not considered criminals and are, therefore, not punished. No
separate provision for rape exists, however, in either the old or the new code,
including for marital rape, which is not recognized under Iranian law.

In cases where the offending party accused of extramarital
sex is not married, the punishment is 100 lashes.[55]
Similarly, if a man is married but has not yet had penetrative sex with his
wife and commits adultery, a judge must sentence him to 100 lashes, a shaved
head, and one (lunar) year of internal exile.[56]

The crime of zena violates international law by
criminalizing consensual sexual relations between adults. International human
rights law requires decriminalization of consensual adult sexual relationships
to protect a variety of human rights, including the rights to
nondiscrimination, physical autonomy, health, privacy, and
liberty.[57]

Sodomy and Lesbianism

Like the old code the new code also requires the death
penalty for an individual engaged in lavat (sodomy), defined as
consensual or forced penetrative sex between two men in articles 232-233, but
unlike the old code, the amendments limit application of the death penalty
depending on whether the man was “active” or “passive.”
It requires 100 lashes but not death for the “active” participant
of consensual same-sex relations, provided he is not married and has not
engaged in rape.[58] But it
requires the death penalty for the “passive” partner, except in
cases of forced sodomy or rape. As with the crime of adultery or fornication,
the new code discriminates between Muslims and non-Muslims: it stipulates that
if the “active” male engaged in consensual penetrative sex act is
non-Muslim and the “passive” male is Muslim, a judge must sentence
the former to death regardless of his role as the “active” partner.[59]

The new code provides a slightly modified definition of mosaheqeh
(lesbianism), which is also considered a “crime against God.” It
defines lesbianism as an act where a “woman places her sexual organs on
the sexual organs of [another woman].”[60] The
punishment for lesbianism is 100 lashes. The New Code also defines
non-penetrative sexual relations between two men that involve sexual organs as tafkhiz
(foreplay between men).[61] The
mandatory “crime against God” punishment for foreplay between men
is 100 lashes.[62]
However, the new code discriminates against non-Muslims by requiring judges to
issue a death sentence for the “active” partner accused of unlawful
foreplay if he is non-Muslim and the “passive” partner is Muslim.[63]

The new code
also subjects other same-sex conduct between men and women not involving sexual
organs, such as passionate kissing and hugging or “laying naked under the
same cover without necessity and out of passion,” to flogging.[64]

Drinking Alcohol

Under
Iran’s old code, consumption of alcohol is a “crime against God”
for which the punishment is 80 lashes.[65] Article
179 of the old code provides that individuals with two prior alcohol
convictions will receive the death penalty upon their third conviction.[66]
The law allows a court to ask the Supreme Leader or his representative, usually
the head of the judiciary, for clemency if defendants repent after being
convicted of the crime based on their own confession.[67]
Clemency is not an option, though, if the conviction was based on witness
testimony.[68]

The new code
retains the punishments of flogging and death for people convicted of consuming
alcohol but is silent on the issue of recidivism.[69]
Article 135 of the new code, however (see below), mandates the death penalty
for all “crimes against God,” including consumption of alcohol,
upon the fourth conviction.

Insulting the Prophet

The third category of “crimes against God” that requires
a death sentence is sabb-i nabi (insulting the prophet). According to
article 263 “anyone who insults … [the Prophet Mohammad] is
considered a sabb al-nabi and shall be sentenced to death.”[70]
The death sentence also applies to individuals who insult the twelve
Shi’a Imams or Fatemeh, the Prophet Mohammad’s daughter.[71]
The code does not provide a definition for what constitutes an insult in such
cases.

As with the old code, the new code’s criminalization
of insulting the prophet, under penalty of death, violates international law
because it is vague, overly broad, and infringes on the right to freedom of
expression under Article 19 of the ICCPR.

Other “Crimes Against
God” Provisions

Both the old and new codes contain other “crimes
against God” that do not generally require a death sentence upon the
first conviction. Examples of these crimes include qavadi (pimping), qazaf
(falsely accusing an individual, dead or alive, of having committed adultery,
fornication, or sodomy), and serqat (theft).[72]
Despite this, article 135 of the new code stipulates that “anytime an
individual commits a similar ‘crime against God’ three times and
the punishment is administered, punishment upon the fourth conviction is
execution.”[73] This
article would seem to apply, at the very least, to the crimes of pimping and
giving false testimony of a prohibited sex act, even though they would not be
considered serious crimes under international law.[74]

It is also interesting to note that although the new code
removes the death penalty for a fourth conviction for foreplay between men, or
for lesbianism, the catch-all language in article 135, still requires such a
sentence upon a fourth conviction for these crimes.

Draconian Drug-Related Punishments

The amendments to the penal code leave intact provisions
that address “discretionary crimes,” including most drug-related
offenses and national security crimes that carry the death penalty, other than
to establish sentencing categories ranging from 25-30 years imprisonment (the
heaviest category of “discretionary crime” punishments under the new
code) to imprisonment of up to three months (the lightest category). As
previously mentioned, the new code abolishes the death penalty for individuals
under 18 years of age who commit “discretionary crimes,” including
drug offenses.

Nonetheless, judges can still sentence drug offenders to
death under Iran’s draconian anti-narcotics law. This law, which was
initially passed by Iran’s Expediency Council in 1988 and then amended in
1997 and again in December 2010, imposes the death penalty for crimes including
trafficking, possession or trade of more than 5kg of opium and other specified
drugs; producing, trafficking, possession or trade of 30g of heroin or morphine
(and repeated offences involving smaller amounts); and the manufacture,
trafficking, and possession of specified synthetic and non-medical psychotropic
drugs.[75] The law
also provides a mandatory death sentence for the “heads of the gangs or
networks,” in addition to armed smuggling.

On October 11, 2010, Iran’s Prosecutor General Gholam
Hossein Mohseni-Ejei announced that to speed up the prosecution of drug offenses,
certain trafficking cases would be referred to his office. After this
announcement Amnesty International said it had received information that those
convicted under the law are not permitted to lodge appeals despite requirements
in the anti-narcotics law, Iranian criminal procedure, and international law
that all death sentences should be subject to appeal.[76]

The number
and percentage of individuals executed by authorities for drug-related offenses
has sharply risen over the last few years. According to research carried out by
Amnesty International, in 2009, of the 389 executions recorded, 166 of them
– or almost 43 percent – were drug-related. In 2010 about 68
percent of all executions recorded by the organization (or 172 of the 253 known
executions) were for drug-related offenses.[77] For
2011, 488 of the at least 600 executions recorded by Amnesty International, or
81 percent, were for drug-related offenses.[78]

In 2009, the Special Rapporteur on extrajudicial, summary,
or arbitrary executions reminded states that, under international law, death
sentences for drug-related crimes should be abolished and those already passed
should be commuted to prison terms.[79] Other
authorities, including the UN High Commissioner for Human Rights and the UN
Special Rapporteur on torture and other cruel, inhuman, or degrading treatment
or punishment, have also maintained that the imposition of the death penalty
for drugs crimes violates international law.[80] The
latter has noted that, in his view, “drug offenses do not meet the
threshold of most serious crimes. Therefore, the imposition of the death
penalty on drug offenders amounts to a violation of the right to life,
discriminatory treatment and possibly … their right to human
dignity.”

The UN Secretary General and the UN Special Rapporteur on
the situation of human rights in Iran have both expressed concern in 2011 about
the high level of executions for drug-related offences. In October 2011, the UN
Human Rights Committee recommended that the Iranian authorities should consider
abolishing the death penalty or at least revise the penal code to restrict the
imposition of the death penalty to only the “most serious crimes.”[81]

V. Failure to Specify Laws
Related to Serious Punishments Including Death

There is an inherent tension in Iranian law between the
concept of codified law and a judge’s ability to rely on religious
sources (shari’a) and/or reliable fatwa or religious decrees
issued by high-ranking Shia clerics. The principle of nulla poena sine lege,
or no punishment without [clear] law, is a well-established one in Iranian law.[82]
According to article 36 of the Iranian Constitution, “the passing and
execution of a sentence must be done by a competent court and in accordance
with the law.”[83] Article
166 of the constitution provides that “verdicts of courts must be well
reasoned and documented with reference to articles and principles of the
law.”[84]

However, Article 167 of the constitution says that “in
case of the absence of any [codified] law, [a judge] must deliver his judgment
on the basis of authoritative Islamic sources and authentic fatwa.”
The inclusion of Islamic law as a source of non-codified civil or criminal law
is also affirmed in article 214 of the Criminal Code of Procedure.[85]

For the first time, the new penal code includes a specific
provision that explicitly empowers judges to rely on religious sources where
crimes or punishments are not specified in the penal code. Article 220 of the new
code provides that in cases where ”crimes against God” are not
specified in the code, judges must issue sentences in accordance with Article
167 of the Iranian Constitution.[86]
According to some Iranian legal scholars, however, this article conflicts with
article 2 of the new code, which states that “crimes are acts or
omissions for which the law has assigned a punishment, and no act or omission
can be considered a crime unless a punishment exists for it in the law.”[87]

Article 15(1) of the ICCPR states

No one shall be held guilty of any
criminal offence on account of any act or omission which did not constitute a
criminal offence, under national or international law, at the time when it was
committed. Nor shall a heavier penalty be imposed than the one that was
applicable at the time when the criminal offence was committed.

Stoning

The tension between codified law and shari’a law (as a
source of non-codified law) took center stage in the debate regarding whether
the amendments to the penal code abolished punishment of stoning. In the old code,
the punishment for adultery was stoning.[88]
According to rights groups Iran has carried out the punishment of stoning
against both men and women several dozen times since 1979.[89]

Most recently, the issue received a great deal of
international attention when rights groups focused on the case of Sakineh
Mohammadi Ashtiani, a 43-year-old woman sentenced to stoning for adultery.[90]
After the international outcry, Iranian judiciary officials declared that her
stoning sentence would be suspended, but she remains on death row, and there is
legitimate fear that authorities may execute her by hanging instead.[91]

Apparently in response to international pressures and
sustained criticism from rights and women’s groups inside Iran, the
former head of the Judiciary, Ayatollah Mahmoud Hashemi Shahroudi, issued a
circular in 2002 that called for a moratorium on the practice of stoning.
Despite the circular, authorities have executed at least five men and one woman
by stoning since then, according to Amnesty International.[92]
In 2008, judiciary officials revoked the circular, noting that it was never
legally binding and contravened provisions in the penal code. Lawmakers and
judiciary officials addressed the controversial issue of stoning again in 2008,
when a draft penal code bill noted that the punishment of stoning may
“result in mischief and cause the degradation of the regime” and
recommended execution by hanging or other methods instead.[93]

Ultimately, however, lawmakers removed stoning as a
punishment for adultery in the amendments to the penal code, which is now
silent on the method of punishment for such a crime.[94]

Notwithstanding the removal of these provisions, Iranian
legal analysts believe that article 220 of the new code empowers judges to rely
on the constitution and sentence individuals convicted of adultery to stoning.[95]
They also refer to debates surrounding the ratification of the new code and
language in articles 172 and 198 of the code (which discusses confessions and
testimony of witnesses for certain “crimes against God” such as
adultery and includes explicit references to stoning) as further proof that
lawmakers did not intend to abolish stoning as a form of punishment.[96]

Apostasy

The applicability of article 220 of the new code and the use
of non-codified religious law is also relevant with respect to the crime of ertedad
(apostasy), which also carries the death penalty. The recent case of Yousef
Nadarkhani illustrates the issues surrounding enforcement of the crime of
apostasy in Iran. In September 2010 a lower court convicted Nadarkhani, a 33-year-old
pastor of an evangelical church in Iran, of apostasy and sentenced him to
death. The judge in the case ruled that Nadarkhani was an apostate because he
was born to a Muslim family and adopted Christianity at age 19. In 2011,
however, Iran’s Supreme Court overturned the earlier death sentence and
remanded the case to the lower court. It instructed the lower court to conduct
additional investigations to determine if Nadarkhani was a Muslim after the “age
of maturity”—15 years for boys according to Iranian law—and
if he repented.[97]

Mohammad Ali Dadkhah, Nadarkhani’s lawyer, argued in
part that his client’s conviction was unlawful because the crime of
apostasy did not exist in the old code. The Supreme Court rejected his argument
that the crime did not exist simply because it was not codified in Iran’s
penal code, and noted that apostasy is recognized as a crime in shari’a
law and by the founder of the Islamic Republic, Ayatollah Ruhollah Khomeini.[98]
Although this ruling was issued prior to the ratification of the new code (and
article 220), it is likely that this new provision will lead to more courts
relying on shari’a law to issue death sentences for crimes such as
apostasy.

Nadarkhan’s case remains under review and his death
sentence has not yet been quashed by Iran’s judiciary.[99]

“Knowledge of the
Judge”

Like the old code the amended code also allows judges to
rely upon their “knowledge,” not only in resolving issues related
to applicable laws, but also in determining issues of fact and evidence.[100]
Article 210 of the new code states that “knowledge of the judge comprises
certainty derived from presentable evidence in connection with an issue before
the judge.”[101] In the
absence of confessions or other available testimony by eyewitnesses, a judge
may enter a conviction for certain crimes based on his “knowledge.”
The law requires, however, that rulings based on a judge’s
“knowledge” derive from evidence, including circumstantial
evidence, and not merely personal belief that the defendant is guilty of the
crime.[102]

Human Rights Watch has documented instances where defendants
have received summary trials in which judges ignored the strict evidentiary
guidelines that the penal code stipulated for such cases. Instead, the judges
have used this apparently unrestricted power to include or exclude evidence to
rely on evidence that should have been inadmissible as evidence of guilt,
including confessions where there was very strong evidence that they were extracted
through the use of physical torture and extreme psychological pressure. In some
cases, for example, courts have convicted defendants of sodomy charges solely
on the basis of “the knowledge of the judge,” even in the absence
of other inculpatory evidence or in the presence of exculpatory evidence. This
provision also makes it easy for a judge’s individual prejudices toward a
defendant’s appearance or demeanor to sway his or her rulings.[103]
It in effect makes the judge a key witness against the defendant, but the
defendant is not able to examine and test the judge’s evidence.

The existence and practice of this provision appears to
violate the right to a fair trial under ICCPR article 14, by in effect making
the judge a witness for the prosecution and therefore able to introduce
evidence against the defendant. This violates the rights of every defendant to
a “competent, independent and impartial tribunal’ and to be able to
“examine, or have examine, the witnesses against him.”[104]

The amended code fully retains Iran’s overly broad and
vaguely worded national security laws under which authorities can prosecute,
convict, and sentence political dissidents and others exercising their basic
rights to freedom of speech, assembly, association, and religion. The new code
also disturbingly expands the definition of another vaguely worded crime, efsad-e
fel arz, or “sowing corruption on earth”, which authorities
have often used to sentence political dissidents and anti-government critics to
death.

Iran currently detains several hundred political detainees,
broadly defined as individuals charged and sentenced to long prison terms, for
exercising their right to freedom of speech, association, or assembly.
Prosecutors charged many of these detainees under Iran’s overly broad and
vaguely defined national security or “anti-terrorism” laws, some of
which carry the death penalty. Authorities try those charged with national
security laws in revolutionary courts; subject them to long periods of pretrial
detention and solitary confinement; prevent them from having regular access to
their lawyers; and subject them to torture and mistreatment.

Under articles 186 and 190-91 of the old code, which
effectively amounted to anti-terrorism laws, anyone found responsible for
taking up arms against the state, or belonging to an organization taking up
arms against the state, was considered guilty of “enmity against
God” and sentenced to death. The crime of efsad-e fel arz, or
“sowing corruption on earth” had been used almost interchangeably
with “enmity against God,” and the definitions were one and the
same. In addition, one of the most serious criticisms of the old code is that
it fails to differentiate between individuals of a group who actually use
violence or take up arms, and those who are merely members (or supporters) of
organizations that have announced their willingness to engage in armed struggle
to reach their objectives, but have never resorted to violence.[105]
Both are subject to the death penalty (or other cruel punishments such as
amputation, crucifixion, or internal exile).

Human Rights Watch has documented numerous cases where revolutionary
courts sentenced individuals to death for “enmity against God”
where no evidence existed that the defendant had resorted to violence, or based
on extremely tenuous links with the alleged terrorist groups (including
fondness or admiration for their ideals). Human Rights Watch has also
documented cases where security forces used physical and psychological coercion
including torture to secure false confessions in security-related cases, and
courts have convicted defendants of “enmity against God” in trials
where prosecutors relied primarily if not solely on confessions and failed to
provide any other convincing evidence establishing the defendant’s guilt.

On January 15, 2011, for example, Iranian rights groups
reported that authorities had executed Hossein Khezri following a revolutionary
court conviction for enmity against God. State-controlled media announced that
day that prison authorities in West Azerbaijan province had hanged a member of
the Party for Free Life of Kurdistan (PJAK), an armed Iranian Kurdish group,
but did not reveal the person's identity. Mohammad Olyaeifard, Khezri's lawyer,
earlier said that Khezri had joined PJAK militants in Iraq when he was younger,
but that he had never participated in the group's military wing and that his interrogators
tortured him to falsely confess to taking part in a violent attack that
happened in 2008.[106]

On May 9, 2010, authorities executed five prisoners, four of
them ethnic Kurds charged with having ties to an armed Kurdish group.
Authorities failed to notify their lawyers in advance and prevented delivery of
the bodies to the families for burial. Human Rights Watch documented numerous
trial irregularities in these cases, including credible allegations of torture,
forced confessions, and lack of adequate access to a lawyer.[107]

Authorities have executed at
least 36 people since January 2010 on the charge of enmity against God, for
alleged ties to armed or terrorist groups. At least 28 Kurdish prisoners are
known to be on death row awaiting execution on various national security
charges including enmity against God.[108]

The New “Enmity
against God” Provisions

The new code retains the crime of enmity against God used by
authorities against political dissidents and described by officials as
“anti-terrorism” measures. Article 280-86 define “enmity
against God”, while articles 287-89 address baghi (armed rebellion).[109]
But the new code limits the definition of the crime of “enmity against
God” to anyone who threatens public security by “drawing
arms” with the intent to kill, injure, steal, or frighten others.[110]
This definition is dramatically different from the definition in the old code,
which allowed for the death penalty for individuals who were members of any
group (including political opposition groups) that engaged in armed resistance
or terrorism against the state. The crime of enmity against God in the new code
also covers robbery and trafficking involving in armed activities.[111]
As in the old code, the penalty for this offensemay be death,
amputation, crucifixion (not entailing death), or internal exile, and lies at
the discretion of the judge.[112]

The New “Armed
Rebellion” Provisions

The new code creates a wholly new crime of “armed rebellion”
targeting individuals engaged in armed resistance against the state.[113]
It provides that the members of any group that opposes the ideals of the
Islamic Republic and use arms to further their goals will be sentenced to
death, and effectively considers the group to be a terrorist organization.[114]
In instances where authorities arrest members of an armed or terrorist group
that have not used weapons or resorted to violence, courts will sentence the
members to imprisonment not exceeding 15 years.[115]
This second provision is an improvement over article 186 of the old code in
that it distinguishes between members of armed or “terrorist
groups” that use or carry arms, and those who do not.

The new more restricted definitions of “enmity against
God” and “armed rebellion” do not necessarily infringe on the
exercise of fundamental rights that are protected under international law, but
the punishments available for these crimes (death, amputation, and crucifixion)
violate the right to life (especially in cases where the crime did not lead to
the death of other individuals) and the prohibition against torture or cruel,
inhuman, or degrading treatment.

The New “Sowing
Corruption” Provisions

The New Code greatly expands the crime of “sowing corruption”
for which the penalty is death, and arguably offsets any improvements made
under the new enmity against God provisions. As previously mentioned, pursuant
to the old code, prosecutors for the most part limited the charges of enmity
against Godand sowing corruption to individuals suspected of engaging
in terrorist-related activities (or being “affiliated with”
terrorist organizations). Under the new definition, however, a court also may
convict someone of sowing corruption if he is found to have “seriously
committed crimes against the physical well-being of the public, internal or
external security, published lies, damaged the economy of the country, engaged
in destruction and sabotage … or operated or managed centers of
corruption or prostitution in a way that seriously disturbs the public order
and security of the nation …”[116]

This new definition covers serious national security crimes
and other organized criminal activities, such as operating prostitution and
racketeering rings or engaging in corruption and embezzlement, but provides no
criteria to determine when and how the listed offenses “seriously
disturb[] the public order and security of the nation.” This is a serious
deficiency given that anyone convicted of sowing corruption is automatically
sentenced to death for a “crime against God.” Rights groups are
also concerned that the new code provisions may criminalize, under penalty of
death, activities (such as the publication of “lies”) that should
be freely permitted under the right to freedom of expression.

In regard to the new definition of sowing corruption, Shadi
Sadr, an Iranian lawyer and rights defender who left Iran after the disputed
2009 presidential election because authorities increasingly harassed her and
her family, told Human Rights Watch:

The most dangerous change in the new law that has received
little attention is the expansion of the definition of [sowing corruption].
… Before [enmity against God] and [sowing corruption] applied to
individuals who used arms or were members of armed groups. But according to the
new law [cowing corruption]… has a very expansive and vague definition
that could even include acts like sending emails opposing the state. And the
punishment is death. It is no longer necessary to link political activists to
groups like the Mojahedin-e Khalq, PJAK or other armed groups in order to
convict them.[117]

This new expanded definition of sowing corruption is so overly
broad and, in some cases, vaguely defined that it infringes on fundamental
rights protected under international law, including the right to freedom of
expression, assembly, and association. It also violates the right to life
because it requires the death penalty for a whole host of offenses that would
not be considered “most serious” under international law.

Troubling National
Security laws Remain Untouched

The new provisions do not alter other crimes defined under
the broadly or vaguely worded “Offenses against the National and
International Security of the Country” (national security laws), many of
which criminalize the exercise of fundamental rights. Examples of these
patently political crimes include “collusion and gathering against the
national security,” “propaganda against the regime,”
“disturbing the public order,” “membership in illegal
groups,” “participating in unlawful gatherings,”
“insulting the Supreme Leader,” and “publication of
lies.” Courts generally hand down sentences on these charges that include
heavy prison terms of up to 25 years, flogging, internal exile, and work bans.

In fact, the penal code’s sections on security laws,
which remain untouched by the amendments incorporated in the new code,
constitute the government’s primary legal tool for stifling dissent.[118]
These laws are so broadly articulated that the government is able to punish a
range of peaceful activities and free expression with the legal cover that it
is protecting national security. The provisions governing security offenses
have been in place since 1996, and the government has frequently relied on them
to arrest and harass perceived critics.

The provisions of the security laws prohibit various forms
of speech, assembly, and expression, allowing the state to arbitrarily and
subjectively judge them as being “against” the nation or its
security. Article 498 of the security laws criminalizes the establishment of
any groups that aim to “disrupt national security.”[119]
Article 500 sets a sentence of three months to one year of imprisonment for
anyone found guilty of “in any way propaganda against the order of the
Islamic Republic of Iran or propaganda for the benefit of groups or
institutions against the order.” Article 610 designates “gathering
or colluding against the domestic or international security of the nation or
commissioning such acts” as a crime punishable by two to five years of
imprisonment.[120]
Article 618 criminalizes “disrupting the order and comfort and calm of
the general public or preventing people from work.”[121]

The government relied on other provisions in the old code
such as Articles 513 and 514, to silence perceived critics. Article 513 of the old
code criminalized any “insults” to any of the “Islamic
sanctities” or holy figures in Islam, while Article 514 criminalized any
“insults” directed at the first leader of the Islamic Republic of
Iran, Ayatollah Khomeini, or at the current leader, Ayatollah Khamenei. Neither
article defines what constitutes “insults.”[122]

Similarly, the Iranian government uses its security laws and
other sections in the old code to restrict speech beyond the narrow exceptions
allowed in international law; these laws remain unchanged in the new code. For
example, forbidding “insults” to the Supreme Leader and setting
heavy punishments for so doing effectively prohibit any critical assessment of
the Supreme Leader, the single most important and powerful position in the
Iranian government.[123] In the
absence of a definition of what constitutes “insults,” both this
article and the article criminalizing “insults” to the
“Islamic sanctities” can be broadly applied to expressions of
criticism about current Iranian policies.[124]

Iran’s constitution provides little effective
protection from such ambiguous and overbroad criminal laws. While the constitution
sets out basic rights to expression, assembly and association, these are
invariably weakened by broadly defined exceptions. Article 24 of the
constitution grants freedom of the press and publication “except when it
is detrimental to the fundamental principles of Islam or the rights of the
public. The details of this exception will be specified by law.”[125]
Article 26 states that freedom of association is granted except in cases that
“violate the principles of independence, freedom, national unity, the
criteria of Islam, or the basis of the Islamic Republic.”[126]
Article 27 guarantees the right to peaceful assembly again with the exception
of cases deemed to be “detrimental to the fundamental principles of
Islam.”[127]

VII. Punishments that
Amount to Torture

The amended penal code retains punitive measures that amount
to torture and cruel, degrading, or inhuman treatment of individuals convicted
of crimes. Most “crimes against God” in the new code, as in the old
code, provide death or flogging for crimes such as adultery, sodomy, consuming
alcohol, and pimping. Non-penetrative same-sex conduct between men and same-sex
relations between women (including lying together naked or kissing) carry
mandatory flogging sentences.[128]

According to article 283 of the new code, a judge who
convicts an individual of the crime of “enmity against God” may
sentence the offender to amputation of the right hand and left leg or
crucifixion (not entailing death).[129]
Iran’s “retribution crimes,” premised upon the idea of an
“eye for an eye,” allow victims of serious injuries resulting from
criminal acts to seek retribution against the offender by amputation of various
body parts arms, legs, and blinding of eyes. Cases of punishments for “retribution
crimes” such as amputation or blinding are rare, but the authorities have
carried them out on occasion in the past 31 years. In the past few years
Iranian courts have issued a handful of “retribution crime”
sentences authorizing the blinding of individuals who blinded their victims
(usually as a result of acid attacks), but Human Rights Watch is not aware of
any cases where authorities actually carried out the punishment.[130]

As previously mentioned, although lawmakers have removed the
punishment of stoning from the new code provisions related to adultery,[131]
article 220 of the new code allows judges to sentence adulterers to stoning by
relying on shari’a law or fatwas issued by high ranking Shia clerics.
Moreover, articles 172 and 198 of the new code, which discuss confessions and
testimony of witnesses for certain “crimes against God,” such as
adultery, still contain references to stoning.

Under international law corporal punishment including
flogging, stoning, and amputation amount to torture or cruel, degrading, or
inhuman treatment. The Human Rights Committee has noted that the prohibition
against torture or cruel, inhuman, and degrading treatment or punishment
“relates not only to acts that cause physical pain but also to acts that
cause mental suffering to the victim.”[132] The
Committee has noted that the prohibition extends to “corporal punishment,
including excessive chastisement ordered as punishment for a crime or as an
educative or disciplinary measure.”[133] The
Special Rapporteur on Torture has specifically addressed the impermissibility
of corporal punishment even when laws authorizing it are derived from religion,
noting that “those States applying religious law are bound to do so in
such a way as to avoid the application of … corporal punishment in
practice.”[134]

It should be noted that under the new code, as in the Old
Code, punishments such as flogging, amputation, and stoning also apply to child
offenders or individuals under the age of 18 when they allegedly committed the
crime.

VIII. Discriminatory
Provisions

The amendments to the penal code reinforce previously
discriminatory provisions against women and religious minorities related to the
implementation of punishments, retribution and compensation, and use of
evidence in court. Examples of discriminatory articles include harsher
punishments (including death) for non-Muslim defendants convicted of consensual
same-sex relations, lower compensation paid to women and non-Muslims (and their
families) who are victims of crimes or tortious acts, and evidentiary
provisions that value the testimony of a woman in court as equal to half that
of a man.[135]

Perhaps the starkest example of discrimination under both
the old and the new code, as previously discussed, is the differential
treatment accorded to boys and girls in relation to the “age of
maturity” and its consequences regarding criminal responsibility. The new
code explicitly pegs the age of criminal responsibility to the age of maturity
or puberty under shari’a law, which is nine years for girls (eight years
and nine months per the lunar calendar) and 15 years for boys (14 years and
seven months per the lunar calendar).

Under the new node (as in the old code) the definition of
what constitutes a “married” man (for the purposes of “crime
against God” punishments for sex outside of marriage ) is slightly
different than the one for women. Under article 227, for example, a man who
commits adultery but has not yet had penetrative sex with his wife will not be
sentenced to death and will instead receive 100 lashes.[136]
The same provision does not exist for women who commit adultery (who will receive
a death sentence regardless of whether or not they had already engaged in
sexual intercourse with their husbands). Moreover, this provision specifically
limits the issuing of “crime against God” punishments for adultery
in cases where the man has a permanent, not a temporary wife.[137]

Another provision in the new code, article 233, further
defines “marriage” within the context of the sodomy law. It
maintains that marriage for a man means that he has a permanent wife who has
reached the “age of maturity,” that they have already consummated
their marriage while she was of age, and that he can still have sex with her
anytime he pleases.[138] Again,
these provisions do not apply to women.

Pursuant to article 303 of the new code, judges cannot issue
a “retribution crime” punishment against fathers or grandfathers
who kill their children.[139]
Additionally, article 303 of the new code provides exemptions for “retribution
crime” punishments, one of which includes “crimes of passion”
or situations where a man walks in on his wife as she is engaged in the act of
adultery. Under these circumstances, the law allows the man to kill both his wife
and the male adulterer without being subjected to the “retribution crime”
laws.[140]

None of the above bars or exemptions to the laws of “retribution
crime” applies to women.

Under article 383 of the new code, where the victim of a
murder is female and the perpetrator male, the victim’s next of kin must
pay half of the full blood money prior to exercising their right to
retribution. If a non-Muslim man kills a Muslim woman, however, he will not be
entitled to blood money compensation prior to his execution.[141]

The new code also retains discriminatory provisions found in
the old code regarding the value of testimony offered by women as evidence. The
testimony provided by a woman in court is, generally, equal to half that of a
man. For example, Article 198 of the new code provides that in general, the
testimony of at least two male witnesses is required for most crimes, but that
in the case of adultery or fornication, the testimony of two men and four women
(who have witnessed the act taking place) is required. In cases where the
punishment is death, the testimony of three men and two women is required.[142]

Where criminal penalties are disproportionately applied
against women, it constitutes a form of discrimination. International law
guarantees equality before the law and prohibit all forms of discrimination.
Direct and blatant differential treatment, enshrined in law and having a
detrimental effect on many women will be considered discriminatory (and
therefore a violation of international law) unless the authorities could show
it was done for a legitimate purpose, and is a proportional means to meet that
purpose. The Iranian authorities have not made any such justification.

Acknowledgements

This report was researched and written by Faraz Sanei,
researcher for the Middle East and North Africa division of Human Rights Watch.
Sarah Leah Whitson, director of the Middle East and North Africa division, Liesl
Gerntholtz, director of the women’s rights division, , and Priyanka
Motaparthy, researcher with the children’s rights division, edited this
report. Clive Baldwin, senior legal advisor at Human Rights Watch, and Tom
Porteous, deputy program director, reviewed this report. Arwa Abdelmoula,
associate in the Middle East and North Africa division, provided production
assistance. Publications Director Grace Choi, Mail Manager Fitzroy Hepkins, and
Creative Manager Anna Lopriore prepared the report for publication.

[1]
Sharia law generally means content included in the Quran or the hadith,
the sayings of the Prophet Mohammad. For ta’zir crimes the state
is usually free to define the elements of the crime and set the appropriate
punishments.

[2] The
crime of “enmity against God” is a specific crime within the
broader category of “crimes against God” for which
shari’a law assigns fixed or specific punishments. Prosecutors often use
the charge of “enmity against God” against individuals they allege
are involved with armed or terrorist groups.

[3]
According to officials, the new code will include more than 1200 articles, and
integrate several other pieces of legislation, such as the Law on Computer
Crimes, which have not yet been integrated into the penal code Iranian
Students’ News Agency. “An Interview with Qorbani about Amendments
to the Islamic Penal Code,” February 20, 2012, is available (in Persian)
at http://old.isna.ir/ISNA/NewsView.aspx?ID=News-1952901&Lang=P.

[4]
During the drafting phase of the new code some officials lobbied hard to
include language that specifically criminalized “apostasy” which is
considered a crime under shari’a law. In the end, however, the approved
draft of the law, like the old code, did not include any references to the
crime of “apostasy.”

[6]
Article 23 identifies a series of other punishments under the title of
“additional and incidental punishments” that judges can use to
sentence individuals convicted of “crimes against God,” “retribution
crimes,” or “discretionary crimes.” They include exile and
bans from work, travel, and participation in political or social organizations.

[7]
Under both the 0ld and new codes, flogging and lashing (used interchangeably in
this report) must be administered to a male detainee while he is standing
upright and stripped of his clothes (except for his genitals, which should
remain covered). The lashing should not target the man’s head, face, or
genitals. Women must be lashed while they are seated with their clothes tightly
bound to their body. See, e.g. old code, art. 100.

[12]
UN General Assembly, Resolution 62/168, Situation of human rights in the Islamic
Republic of Iran, UN Doc. A/RES/62/168, March 20, 2008. This resolution called
upon the Government of the Islamic Republic of Iran “to abolish, as
called for by the Committee on the Rights of the Child in its report of January
2005, executions of persons who at the time of their offence were under the age
of 18”; and “Situation of human rights in the Islamic Republic of
Iran” where the AG “deplores the execution of persons who were
under the age of 18 at the time their offence was committed, contrary to the
obligations of the Islamic Republic of Iran under article 37 of the Convention
on the Rights of the Child, and articles 4 and 6 of the International Covenant
on Civil and Political Rights and in spite of the announcement of a moratorium
on juvenile executions” called upon Iran “to abolish …
executions of persons who at the time of their offence were under the age of
18, and to uphold the moratoriums on juvenile executions and executions by
stoning and to introduce these moratoriums as law in order to completely
abolish this punishment”, UN-Doc. A/RES/61/176, 1 March 2007. Annex 1.

[15]
Report of the Special Rapporteur on extrajudicial, summary or arbitrary
executions, Philip Alston UN

Human Rights Council, May 29, 2009, A/HRC/11/2/Add.1,
188.

[16]
The latter has said that “the imposition of the death penalty on drug
offenders amounts to a violation of the right to life, discriminatory treatment
and possibly … their right to human dignity.” Report of the Special
Rapporteur on torture and other cruel, inhuman or degrading treatment or
punishment, 14 January 2009, A/HRC/10/44, para. 66.

[18]Iran Constitution, article 38. Article 578 of the penal code and
articles one, six, and nine of the Citizens Rights Law of 2004 also prohibit
the use of torture, especially in order to secure confessions.

[37]Asked about Iran leading the world in the execution of juvenile
offenders in a New York Times interview, Iranian President Ahmadinejad
said: “In Iran youngsters are not executed. Where have they been
executed? Our law actually sets 18 as the criminally liable age for capital
punishment. So I don’t really know where you brought the number 30
from.” See “An Interview with President Mahmoud Ahmadinejad,”
New York Times, September 26, 2008, http://www.nytimes.com/2008/09/26/world/middleeast/26iran-transcript.html?_r=1&pagewanted=2&ref=middleeast
(November 26, 2010).

[38]
UN General Assembly, Resolution 62/168, Situation of human rights in the
Islamic Republic of Iran, UN Doc. A/RES/62/168, March 20, 2008. This resolution
called upon the Government of the Islamic Republic of Iran “[to] abolish,
as called for by the Committee on the Rights of the Child in its report of
January 2005, executions of persons who at the time of their offence were under
the age of 18”; and “Situation of human rights in the Islamic
Republic of Iran” where the AG “deplores the execution of persons
who were under the age of 18 at the time their offence was committed, contrary
to the obligations of the Islamic Republic of Iran under article 37 of the
Convention on the Rights of the Child, and articles 4 and 6 of the
International Covenant on Civil and Political Rights and in spite of the
announcement of a moratorium on juvenile executions” called upon Iran
“to abolish … executions of persons who at the time of their
offence were under the age of 18, and to uphold the moratoriums on juvenile
executions and executions by stoning and to introduce these moratoriums as law
in order to completely abolish this punishment; UN-Doc. A/RES/61/176, March 1,
2007. Annex 1.

[40]Islamic Penal Code, art. 49; Civil Code of
November 1991, art. 1210. For a discussion of prevailing debates over puberty
and criminal responsibility in Iran, see the article by Iranian human rights
defender Emad Baghi, "The Issue of Executions of Under-18s in Iran,"
July 2007, http://www.emadbaghi.com/en/archives/000924.php? (accessed May 21,
2008).

[43]
After the execution of 17 year old Alireza Molla Soltani in September 21, 2011,
a spokesperson for the prosecution justified the public hanging by claiming
that Molla Soltani was 18 years under the lunar calendar. The judiciary had
sentenced Molla Soltani to death for the murder of a well-known champion of
Iran's “strongest man” competition. UN: Expose Iran’s Appalling
Rights Record, Human Rights Watch news release, September 21, 2011, http://www.hrw.org/news/2011/09/21/un-expose-iran-s-appalling-rights-record.

[45]
Article 31(3) of the new code would allow but not require judges to reduce a
sentence of death or life imprisonment against juvenile defendants ages 15 to
18 to a term of imprisonment ranging from two to eight years in a juvenile
correctional facility. In addition, article 33 of the new code makes clear that
reduction of sentences in “retribution crimes” and “crimes
against God” shall be applied only when the judge determines that
“the complete mental maturity of the defendant is in doubt.” Human
Rights Watch, The Last Holdouts: Ending the Juvenile Death Penalty in Iran,
Saudi Arabia, Sudan, Pakistan, Yemen, September 2008,
http://www.hrw.org/sites/default/files/reports/crd0908web_0.pdf.

[47]
New code, art. 145. Nonetheless judges may sentence individuals younger than
the age of maturity to a series of correctional and rehabilitation measures. In
addition to maturity, judges must determine whether the accused was “of
sound mind” and whether he or she willingly committed the criminal act or
omission in question. New code, art. 139.

[48]
“Discretionary crimes” include drug trafficking and possession,
which carry very heavy punishments under Iran’s draconian anti-narcotics
law and have accounted for the vast majority of executions during the past few
years. Article 87 of the new code provides that children who are between the
ages of nine and 15 when they commit “discretionary crimes” or ta’zir
crimes may be subject to a series of minor correctional and rehabilitation
measures, including strict supervision by parents or other legal guardians,
referral to social workers, limitations on their freedom of movement, or
transfer to a correctional facility between three months to one year. Article
88 provides harsher penalties for children who are between 15 to 18 years when
they commit a “discretionary crime,” including monetary fines and
transfer to a correctional facility up to five years (depending on the severity
of the “discretionarycrime”). Indeed, the new code does not
seem to apply “age of maturity” requirements to ta’zir
crimes at all.

[49]
New code, art. 90. There is a danger that this standard will be applied
arbitrarily since the new code does not specify how a judge is to determine
whether a child understood the nature or consequences their actions.

[51]
Pursuant to article 87 of the new code judges may sentence offenders who have
not yet reached the “age of maturity” and are convicted of
“crimes against God” or “retribution crimes” while they
were between the ages of 12 to 15 lunar years a warning or transfer them to a
correctional facility from three months to one year. New code, Article 87, note
2. Technically this provision only applies to immature boys since girls over 9
lunar years are considered mature and criminally responsible. In all other
cases (i.e. “immature” offenders under 12 lunar years) judges may
sentence the offender to series of minor correctional and rehabilitation
measures including strict supervision by parents or other legal guardians.
Ibid.

[52]
New code, art. 225. For a discussion of the removal of key provisions related
to stoning as a punishment for adultery, see infra section V.

[53]
Ibid., art. 22, note 2. In cases of incest, if the victim has not reached the
“age of maturity,” a judge may sentence the offending party only to
100 lashes.

[54]
Ibid., art. 225(d). The New code also maintains that the crime of forced
extramarital sex is committed when a man tricks, scares or threatens a woman
into having penetrative sex with him. Ibid., art. 225, note 2.

[56]
Ibid., art. 227. The adultery or fornication provisions do not provide a
precise definition regarding marriage, but article 233 under the sodomy
(penetrative sex between two men) heading of the new code maintains that marriage
for a man means that he has a permanent wife who has reached the “age of
maturity,” that they have already consummated their marriage while she
was of age, and that he can still have sex with her anytime he pleases.

[57]
United Nations expert bodies and special rapporteurs have called for the repeal
of zena laws in various countries. For example, the UN special
rapporteur on violence against women has called on Afghanistan to
“abolish laws, including those related to zena, that discriminate
against women and girls and lead to their imprisonment and cruel, inhuman and
degrading punishment” (see the Report of the Special Rapporteur of the
Commission on Human Rights on violence against women, its causes and
consequences, and the situation of women and girls in Afghanistan, UN Doc.
A/58/421, October 6, 2003 at para. 31.

[58]
Ibid., art. 233. The old code required judges to sentence both partners to
death. The term “active” partner refers to the individual whose
penis has penetrated the anus of his male partner. “Passive”
partner generally refers to the latter individual. For in-depth analysis of
penal code provisions related to same-sex conduct and its effects on
Iran’s lesbian, gay, bisexual and transgender community, see generally,
Human Rights Watch, “We are a Buried Generation,” December 2010, http://www.hrw.org/sites/default/files/reports/iran1210webwcover_1.pdf.

[60]
Ibid., art. 238. Article 127 of the old code defined lesbianism as
“same-sex relations between women by way of their genitals.”
According to some Iranian legal scholars, such as Shadi Sadr, the more exact
definition of lesbianism in the new code makes it more difficult for
authorities to convict women of lesbianism. Maryam Hosseinkhah, The Execution
of Women in Iranian Criminal Law: an Examination of the Impact of Gender on
Laws Concerning Capital Punishment in the New Islamic Penal Code, May 7, 2012,
available at http://www.iranhrdc.org/english/publications/legal-commentary/1000000102-the-execution-of-women-in-iranian-criminal-law.html.

[61]
New code, art. 234. Tafkhiz is defined as “placing one’s
male sexual organs between the thighs or buttocks of another man.”

[69]
New code, art. 266. As with the old code consumption of alcohol by non-Muslims
is not considered a crime unless they do so in public view. Ibid., art. 267.

[70]
Ibid., art. 236. Insulting the Prophet Mohammad also includes the crime of qazaf,
or falsely accusing the Prophet Mohammad of having committed adultery or
sodomy. See discussion below regarding the crime of qazaf.

[76]
Amnesty International, Addicted to Death, December 2011, at 16,
available at
http://www.amnesty.org.nz/files/Iranreport_Addictedtodeath_AmnestyInternational.pdf.
Under article 32 of the Anti-Narcotics Law death sentences passed under the law
must be affirmed by either the Supreme Court or the Prosecutor General.

[77]
Amnesty says, however, that it received credible reports of over 300 further
executions, the vast majority believed to be for drug-related offenses
(bringing the percentage of drug-related executes to 80 percent).

[78]
Amnesty International, Addicted to Death, December 2011, at 19-20,
available at
http://www.amnesty.org.nz/files/Iranreport_Addictedtodeath_AmnestyInternational.pdf.

[80]
The latter has said that “the imposition of the death penalty on drug
offenders amounts to a violation of the right to life, discriminatory treatment
and possibly … their right to human dignity.” Report of the Special
Rapporteur on torture and other cruel, inhuman or degrading treatment or
punishment, 14 January 2009, A/HRC/10/44, para. 66.

[83]
Iranian Const., art. 36. Article 32 of the Iranian Constitution also says that
“no one may be arrested except by the order and in accordance with the
procedure laid down by law.” Iranian Cons., art. 32.

[84]
Ibid., art. 166. Article 169 of the constitution also provides that “no
act or omission may be regarded as a crime on the basis of a law established
subsequent to it.”

[85]
Code of the Criminal Procedure for the Courts of General Jurisdiction and
Revolutionary Courts, Approved by the Islamic Consultative Assembly September
19, 1999, art. 214. The article states: “Where there is no corresponding
law against the issue at hand, [the court] must proceed to issue a verdict
substantiated on reliable religious sources and/or reliable fatwa. The
court cannot refrain from issuing a verdict under the pretext of absence,
discrepancies, imprecision or vagueness, and/or conflict in codified
law.”

[88]
See generally old code, arts. 89-107. According to the old code, both men and
women condemned to stoning must be placed in a hole in the ground, but a man
must be covered with dirt up to his waist while a woman must be covered up to
her breasts. Ibid. art. 102. The size of the rock used to stone the condemned
must be small enough not to cause death upon one or two blows, and large enough
not to be considered a pebble. Ibid. art. 104. In the case of adultery proven
by confession (and not testimony), if the detainee is able to escape, he or she
may not be returned to the hole and stoned again. Ibid. art. 103.

[89]
According to Amnesty International, authorities have stoned at least 77 men and
women to death since 1979. Amnesty International, Iran: Executions by Stoning,
December 2010,
http://www.amnesty.org/en/library/asset/MDE13/095/2010/en/968814e1-f48e-43ea-bee3-462d153fb5af/mde130952010en.pdf
(cited in Maryam Hosseinkhah, The Execution of Women in Iranian Criminal Law:
an Examination of the Impact of Gender on Laws Concerning Capital Punishment in
the New Islamic Penal Code, May 7, 2012, at 17-18, available at http://www.iranhrdc.org/english/publications/legal-commentary/1000000102-the-execution-of-women-in-iranian-criminal-law.html).

[92]
Authorities also reportedly executed another two men and one woman originally
sentenced to stoning by hanging since Shahroudi issued the circular. Amnesty
International, Iran: Executions by Stoning, December 2010, http://www.amnesty.org/en/library/asset/MDE13/095/2010/en/968814e1-f48e-43ea-bee3-462d153fb5af/mde130952010en.pdf
(cited in Maryam Hosseinkhah, The Execution of Women in Iranian Criminal Law:
an Examination of the Impact of Gender on Laws Concerning Capital Punishment in
the New Islamic Penal Code, May 7, 2012, at 17, available at http://www.iranhrdc.org/english/publications/legal-commentary/1000000102-the-execution-of-women-in-iranian-criminal-law.html).

[99]
In August 2012 Nadarkhani learned that authorities planned to retry him on new
charges that include “banditry and extortion.” International
Campaign for Human Rights in Iran, “‘Banditry and Extortion’
Replace ‘Apostasy’ Charges for Christian Pastor!”, August 17,
2012, http://www.iranhumanrights.org/2012/08/nadarkhani/ (accessed August 21,
2012). Human Rights Watch could not independently confirm whether these new
charges replace the apostasy charges, and continues to believe that the death
sentence against Nadarkhani has not yet been quashed by the judiciary.

[100]
See, e.g., old code, Iran, arts. 120. Article 120 of the of the old code allows
a shari’a judge to reach a verdict on sodomy based on his
knowledge as “derived through customary methods,” which in practice
enables judges to rely on tenuous circumstantial evidence to determine whether
a crime has occurred.

[105]
See, e.g., old code, art. 186. Article 186 says: “All members and
supporters of any group or organized body that initiates armed rebellion
against the Islamic government and retains its central structure during such
rebellion are considered moharebs so long as they are aware of the
group’s, body’s or organization’s beliefs and have, in an
effective way, contributed to the advancement of its goals and objectives ,
even if they have not participated in the group’s armed branch.

[109]
New code, arts. 280-86; 287-89. The crimes of efsad-e fel arz and baghi
are grouped and defined together in the new code (similar to the way efsad-e
fel arz and moharebeh were grouped together under the old code), but
they are different offenses with different elements.

[110]
Ibid., art. 280. In the old code the definition of “Enmity against
God” also covered anyone found responsible for taking up arms against the
state, or belonging to an organization taking up arms against the government.
Old code, arts. 183-88.

[129]
New code, art.283. The judge is allowed to choose the form of punishment.
Ibid., art. 284. Amputation is mandatory for other “crimes against
God” such as certain types of theft. See, e.g., new code, art. 279.

[137]
Under Iranian law, men are allowed to have up to four permanent wives, but
Iranian law also allows the practice of sigheh, or temporary marriages.
The law only allows men to have temporary wives, and women are not accorded the
same privileges.

[142]
New code, art. 198. The article also says that when two men and four women
provide witness testimony regarding adultery (which carries the death
sentence), the punishment is only flogging. With regard to “compensation
crimes,” the testimony of one man and two women is sufficient.

Corrections

The August 2012 report, Codifying Repression: An Assessment of Iran’s New Penal Code, incorrectly stated on page 31 of the printed English version and page 24 of the printed Persian version that “Article 220 of the new code provides that in cases where “crimes against God” are specified in the code, judges must issue sentences in accordance with Article 167 of the Iranian Constitution.” The correct sentence should read: Article 220 of the new code provides that in cases where “crimes against God” are not specified in the code, judges must issue sentences in accordance with Article 167 of the Iranian Constitution.